Planning/urbanisation/building consent

A previous general consideration must be usefull for a proper understanding of the following answers.

The Kingdom of  Spain entails three level of Administration and governmental powers. The State, the regional (Comunidad Autónoma)and the local (Ayuntamiento) power. Each one vested with competences in the matters concerned.

The State is competent with regard to ownership and other property rights and also in public registers, like the land registry, its rules and effects. The Comunidad Autónoma is competent to organise the planning and urbanistic policy, the governing acts  (most important one is called land act, Ley del Suelo) and general plans for the region, and finally the Ayuntamiento approves local regulations, the most important of which is the General Urban Plan (Plan general de Ordenacion Urbana also known as PGOU) of the city.

As a result of this scheme, there are a couple of State acts (Código Civil, Ley Hipotecaria, Ley del Suelo, Ley de Ordenacion de la Edificación), seventeen Leyes del Suelo, one per Comunidad Autónoma, and thousands of PGOUs, all of them considered public law,  so no needed of additional publicity.

Urban and planning law does not affect   ownership in its existence and attribution, but it does affect  its content, the vertical extension of the right and the potential uses of the property.

Until  the 1990 Land act, nothing related to urban and planning issues was checked or reflected in the land registry, so there was a parallel research to be done in the town hall. Ever since a progressive incorporation of urban and planning situations to the land registry is taken place, so land registry also publishes  in  most recent entries a lot of planning information.

Two important remarks  with regard to the urban information in the land registry, first  it is not complete, as we said only last years some of the information is checked and reflected in the books, and second the existing information, is no under the protective effects of the Registry, since is information produced and derive from a different source.

1.    Explain briefly what official permissions are needed in relation to buildings, and what authority grants them. Is permission needed for:

• The erection of a building
• The alteration of a building
• The detailed design of a building
• The materials and method of construction
• The demolition of a building

ERECTION

A town hall permission  called licencia de obra mayor  is needed  before starting the building. A project signed by an architect must be presented for approval. The project contains provisions about the use of the building, so the licence takes this into account.

Once the building is finished, there in a new permission to be obtained from the town hall called licencia de primera ocupación, devoted to check whether the building has been in fact concluded according to the project approved in the first permission. This permission allows the use of the building.

Some additional permisions are needed in the case of commercial venues, depending on specific envisaged use licencia de primera utilizacion, licencia de inicio de actividad .

The developer is also obliged to subscribe an insurance policy to cover risk of damages in the building framework for a period of ten years. Only self devepolers are release from this obligation under certain conditions.

Today all these documents  must be checked before registration, so the land books give information about its existence and therefore

ALTERATION

It depends on the nature of alteration  in light of dispositions of the regional  land act with the specifications contained in the town hall urban general plan of the town.

In general terms a change of use would need permission.The extension of the building would also need permission. On the contrary  small alterations of the internal design of the building no, unless it affects façade or roofs. There is not a straight answer and it must be checked in the town hall for each case.

The cases needed of permission will be checked if they want to be reflected in the registry.

DEMOLITION

It is needed of permission, but this is not checked by the registry, perhaps because in most cases is only reflected in the registry once it had happened and when a new building  is registered.

More interesting in this case is the registry notice from the town hall alerting the legal declaration of ruin on a certain building,

The regular procedure to any urban act, is to obtain a licence from the Townhall. In addition to this, in case of an erection of a building, once it is terminated, it is compulsory to obtain a licence for occupation or activity (arts. 20 TR Ley 2/2008, del Suelo 20 de junio and Real Decreto Ley 2/2011).

The exception to this system is the special protected buildings, which require additional authorizations, depending of the use, kind of actuation and Public Administration who owns the building.

2.    Are buildings of a certain age exempt from any of these requirements?

Buildings which were erected before the first Spanish Urban Law of 1992, are exempt of any licence. Additionally, Autonomic Urban Laws can establish different and shorter terms in order to prescription of urban restoration procedures.

The procedure to register these old buildings is established in art. 52 RD july 4th 1997, which depends on the terms of prescription for legal procedures to restore urban order. Land Register always communicate the Municipality in which the building is situated the registration of the erection of the building, and also Land Register requires the municipality additional information, in order to publish if the building is within legal urban ordination. The distinction of out or within legal urban ordination is relevant to third parties, because Urban Autonomic Laws do not permit the alteration of a building declared out or ordination. Real Decreto Ley 2/2011 establishes the obligation for the Municipalities to communicate to the Land Register if the building within the urban ordination.

As an exception, buildings erected on special protected areas cannot be registered without a legal authorization or declaration, because the legal procedures to restore the legal urban order are indefeasible. This procedure is also covered by Land Registry.

3.    Is official permission needed for the use to which land or buildings are put?

The use of land or buildings is established by law, which states for each devoted property or area what kind of use is suitable for. Land registry does not publish urban uses of ownership, it is supposed to be of public knowledge. The most important rule for this purpose is the local general urban plan (PGOU), available in the town hall for consultation. (Somecases through the town hall`s web site http://www.madrid.es

URBAN AREAS

There are public or community uses: green areas, health, commercial, sports… and private uses, which are basically three: residential, commercial and industrial.

For a new building, as we explained before, the licencia de primera ocupación allows the owner to start using the property and to contract with the utility suppliers, (water electricity, etc..). This is enough for residential use. In the case of commercial or industrial venues, different permissions are needed depending on the kind of the envisaged use or activity : licencia primera utilización o licencia de apertura de actividad

It is also necessary  permission to change the use of the building and in some cases even for the change of use of a part of a building.

RURAL AREAS

The only allowed use is for agriculture, forest or cattle purposes. Building permissions are very restrictive in this areas, they are only permitted as far as the building complements the rural development of land. Although competence remains in the Ayuntamiento (town hall), the Comunidad Autónoma may also intervene in these cases.

As principle, no permission is needed for the use of land or buildings. But a new licence is required when changing the use of buildings.

In case of land, use is free within its urban category (i.e., rural land cannot be used for non-rural activities).

4.    How does one discover whether the necessary permissions exist? Is it recorded in the land register, cadastre or some other register?

The place to discover whether permissions are needed or not is the Ayuntamiento , the town hall. In general town halls must be able to provide citizens with urban information of a certain property issuing a document called cédula urbanística, which describes typologies, uses , restrictions and other urban features of the property.

As we said before land registry can provide information about the existing permissions, but only in case of new buildings and in entries performed after 1990. For old buildings situation depends on each Comunidad Autónoma. In general terms the system is to prove before the registry the prescription of the public action to restore legality and demolish the building , and once the registration is done the registrar notifies the town hall.

Cadaster does not deal with urban uses and restrictions at all. On the contrary, Cadaster, created for taxation purposes, reflects most accurately what exists on the ground, no bother whether it is legal or not.

These compulsory permissions are published by Law. And its obtaining is required to accede to the Land Register. The Land Register also publishes some limitations or additional requirements affecting to land (i.e. the compulsory construction risk secure, in case of purchase of single-familiar buildings within the ten years after their construction, D.A. 2ª Ley 38/1999 Ordenación de la Edificación).

5.    Are additional permissions needed in particular geographical areas? How does one discover whether a property is in such an area? Is it recorded in the land register, cadastre or some other register?

Each Municipality can establish certain areas in which the public financing of the construction or the special features of the land impose a pre-emption right or the compulsory authorization for their purchase. The Autonomic Urban Laws fix the legal conditions for their settlement, and in any case, these special areas must be published in the Official Gazettes. In addition to this, the last reform of our Estate Urban Law (Real Decreto Ley 8/2011, July 8th), establishes the obligation of the Administration to communicate the Land Register the public rights of way, public servitudes, and other special public restrictions.

When the flat has the category of V.P.O. (Legal Protection Property), an administrative authorization for the purchase is required, due to special financial reasons that were applied for the construction and the original purchase of the flat property. This V.P.O category must be previously registered in the Land Registry.

Finally, several additional authorizations required in certain areas, such as Ceuta, Melilla, North of Africa or near the coast, has been exposed in former paragraphs.

6.    Are there additional requirements for permission to alter or demolish certain buildings because of their age or architectural or historic value? How does one discover that such additional requirements exist? Is it recorded in the land register, cadastre or some other register?

The Spanish historical patrimony act 1985 (Ley del Patrimonio Histórico español  http://www.mcu.es/patrimonio/docs/ley16-1985.pdf) contains provisions to protect specific buildings and areas with historical , artistic, or archeological interest.  This includes pre emption rights, preservation measures and obligations, including prohibition of demolition, reimburse funds for restoring and maintaining buildings…

Every Comunidad Autónoma had also declared and protected buildings and areas of regional interest  enacting regional acts.  Ayuntamientos define also historical areas and neighbourghs of the town where similar restrictions are imposed.

The easiest way to find out  them is by checking in the general urban plan of the town ( PGOU), where  state, regional and local restrictions are supposed to be reflected with regard to each immovable or area  or special building of the town.

Monuments and listed buildings are usually owned by the State, the Autonomic Community or the municipalities, so previous purchase is necessary. This purchase requires several authorizations, depending on the kind of monument and its owner, and usually the authorization for the purchase establishes all the legal restrictions. These restrictions are published by the Land Registry.

In case of buildings owned by particulars but with architectural or historic value, the Historical Patrimonial Estate Law and the several Autonomical Patrimonial Laws establish the legal procedure.

The rest of building do not need any especial authorizations.